Possible Prosecutorial Misconduct But a Definite Discovery Violation

Serious possible prosecutorial misconduct but a difinite discovery violation is being litigated in the Third District. Podcast Episode 047 of the Criminal Nuggets Podcast discusses a case where the issue at hand involves whether or not a prosector told a witness to lie at trial.

Relevant Facts

This involves a murder trial and conviction. Defendant shot the victim after a confrontation in the street. Defendant has been saying the whole time,

“I only shot him because he was reaching for the gun in his waistband.”

Defendant testified at trail that he ran away and left both guns at the scene.

The 11 year old witness at trial testified he only saw one gun, the Defendant’s gun.

No guns were actually found at the scene.

Some Procedural History

Direct appeal is lost. First post conviction is summarily denied.

But this is where things get interesting.

The first pro se petition was based on the discovery that the 11 year-old witness was the cousin of one of the prosecutors involved in the case. To be clear, the witness was not related to the prosecutor who conducted the direct examination. The related prosecutor was acting as co-counsel on the case.

So the prosecutor related to the witness was sitting at the table when the 11 year-old was testifying.

The trial court dismissed that petition only saying that the prosecutor

“‘probably should have’ disclosed the relationship, but since it concerned only bias and witness credibility, the court would not order a new trial.” ¶ 8.

Now Defendant has an affidavit from the witness himself (the 11 year-old kid, now an adult) saying basically, “Yea, the prosecutor is my cousin” and also saying that

“…the guy that got shot also had a gun when he got shot but I was told not to say that he had a gun.” ¶ 9.

The trial court again dismissed this petition saying that there was no reasonable probability that the outcome would have been different. Again, this means the trial court is saying that the petition is frivolous or patently without merit.

Results

The appellate court reversed the trial court's dismissal of the second post conviction petiton. The case has been remanded so it can advance to a second stage postconviction process.

The reviewing court is essentially saying this ain’t frivolous or without merit anymore. There is a gist of a constitutional claim here. Further, the reviewing court said that it pretty much looks like it was the prosecutor who told this kid to lie in court.

Is This a Big Deal?

The reviewing court recognized that this is kind of a big deal and did a great job of not holding the defendant to too high a burden at the first stage of the post conviction process.

The court flatly held that when

“a witness's testimony is entirely unreliable if he is under instructions from a prosecuting entity to lie or to omit certain facts while testifying.” ¶17.

Is that completely crazy? I don’t know but the concurrent decision thought so.

I understand the denial of the first post conviction petition. There the defendant was only saying that he would have liked to have known that the main witness was cousins with one of the prosecutors. This is certainly a significant discovery violaiton.

Obviously, there were some issues there that could have been explored on cross examination. You know, “Are testifying this way just to make your older cousin happy?” That kind of thing.

However, it is hard to say that Defendant would have cracked the case wide open by just knowing that the witness and one of the prosecutors were related.

Defendant was not alleging in that first petition that the kid actually was told to lie.

Case Deserves to Proceed

Nevertheless, the issues involved here are of such magnitude that they deserve to be further developed by the system.

To be absolutely clear. We don't know for certain that the prosecutor was the one who told the witness to deny that the victim had a gun. This is a fact that has to be developed as the case proceeds through the postconviction process.

This case is a great example of why we even have a post conviction process.

This is Why Postconviction Petitions Exist

I understand the feeling that giving defendants a chance to file these things is a complete waste of time and money.

The view is that all they are used for is to make meritless complaims about their convictions. A case with a conviction with a leanghty sentence never ends because the Defendant just uses every procedural mechanism in the books to keep his case in the system.

This robs the victims and society of knowing that a case has been litigated to a definitive end. That is how that line of thinking usually goes.

However, as this case illustrates, somties a Defendant is not going to learn of a discovery violation or of prosecutorial misconduct until years down the road. A direct appeal is desinged to follow immiedatley after a trial to correct trial mistakes. A direct appeal will rarely be an adequate way to attack misconduct discovered years later.

We have to have some mechanism in place that a Defendant can access when, and if, important details involving his criminal process ever come to light.

This is why we can’t just scrap the opportunity to file a post conviction petition.